Citation Nr: 1807668
Decision Date: 02/06/18 Archive Date: 02/14/18
DOCKET NO. 14-13 974 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana
THE ISSUES
1. Entitlement to service connection for low-grade lymphoma.
2. Entitlement to service connection for encephalitis and meningitis, claimed as brain damage.
ATTORNEY FOR THE BOARD
C. Teague, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1989 to July 1993.
This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.
In October 2015, the Board remanded the claim to afford the Veteran a hearing. The Board notes the October 2015 Board remand was returned as undeliverable. In September 2016, the AOJ sent the Veteran a hearing letter, which was also returned as undeliverable. In January 2018, the Board attempted, but was unable to contact the Veteran through the phone numbers listed in VA systems. A claimant has the duty to advise VA of his or her current whereabouts. Hyson v. Brown, 5 Vet. App. 262 (1993). As stated in Hyson, there is no burden on the part of VA to turn up heaven and earth to find a claimant, and VA's administrative obligation was met in the current case when hearing notifications were sent to the Veteran's last address of record. Therefore, there was substantial compliance with the October 2015 remand, and the case is once again before the Board for appellate consideration of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998).
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).
REMAND
Additional development is necessary to allow the Board to make a fully informed decision. The Veteran claims entitlement to service connection for low-grade lymphoma and encephalitis and meningitis, claimed as brain damage, on both a direct basis, and as a result of chemical exposure during the performance of her in-service duties. However, the current record appears incomplete, with no service personnel records, no DD-214, and it is unclear whether all of the Veteran's service medical records have been obtained.
Next, VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on his or her claim. 38 U.S.C. § 5103A(d) (West 2012); 38 C.F.R.
§ 3.159(c)(4) (2017). To date, the Veteran has not been provided with a VA examination.
Accordingly, the case is REMANDED for the following action:
1. Undertake appropriate action to obtain the Veteran's complete service personnel records and service medical records. If no additional service personnel records are located, a written statement to that effect should be incorporated into the record.
2. After competition of the development listed above, schedule the Veteran for a VA examination to determine the nature and etiology of any low-grade lymphoma, encephalitis, or meningitis, claimed as brain damage. The entire VA record must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of the record, the examiner should provide opinions that respond to the following:
Does the Veteran have a current diagnosis of low-grade lymphoma? If yes, the examiner should identify the specific disorder(s) and provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder(s) is(are) etiologically related to the Veteran's active military service, to include any chemicals from her work as a photographer and/or radiation exposure.
Does the Veteran have encephalitis or meningitis? If yes, whether it is at least as likely as not (a 50 percent or greater probability) that any currently present disorders are etiologically related to the Veteran's active military service to include any chemicals from her work as a photographer and/or radiation exposure?
A complete rationale for all opinions is required.
3. After completing all indicated development, and any additional development deemed necessary, readjudicate the claims. If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity for response.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012).
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H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).